Kristopher Kinsinger: The change Alberta’s constitutionally ambiguous sovereignty act needs
Alberta #Alberta
After months of anxious waiting (for constitutional scholars and lawyers, at least) the Alberta Sovereignty Within a United Canada Act has been introduced in the legislature.
The act was a key promise made by Premier Danielle Smith during her United Conservative Party leadership campaign. It was originally proposed as part of what Howard Anglin described as the “deeply unserious” Free Alberta Strategy published by the Alberta Institute, a libertarian think tank. Until this week, it wasn’t clear which aspects of this strategy Smith would seek to enact.
On being sworn in as Alberta premier, Smith promised — in response to fears that the act would seek to empower Alberta’s government to ignore unfavourable court decisions — that her government would abide by rulings from the Supreme Court of Canada. She was otherwise non-committal as to what the legislation would specifically seek to accomplish.
Thankfully, the act does not follow through on two of the most patently unconstitutional proposals from the Free Alberta Strategy: namely, to exempt private individuals and entities from following certain federal laws, and to immunize Alberta from court rulings made by federally appointed judges deemed by the provincial government not to be in its interests.
It remains to be seen whether other aspects of the legislation will survive constitutional scrutiny. Some jurists have raised legitimate concerns over the act’s inclusion of a Henry VIII clause, so named for the King of England who purportedly gave his proclamations the same force as legislation passed by Parliament.
If this clause were to be invoked by the legislature (by passing a motion pursuant to the act) it would essentially allow Alberta’s cabinet to unilaterally amend provincial laws without going through the legislature. Such amendments would be subject to a two-year sunset clause that can only be renewed once.
The argument against Henry VIII clauses is that they undermine responsible government, one of Canada’s core constitutional principles. Such clauses have nevertheless been held to be constitutional, at least in principle. This was the majority’s conclusion at the Supreme Court of Canada last year in the References re Greenhouse Gas Pollution Pricing Act (though with a characteristically spirited dissent on this point from Justice Suzanne Côté).
Likewise, the act allows the Alberta legislature to state, in its opinion, whether a federal law “causes harm to Albertans” or is unconstitutional for “(intruding) into an area of provincial legislative jurisdiction” or “(violating) the rights and freedoms of … Albertans under the Canadian Charter of Rights and Freedoms.”
This is the crux of the legislation. Where the Alberta legislature passes a resolution stating its opinion that a federal law is unconstitutional or harmful to Albertans, the provincial cabinet may direct how “provincial entities” (including public agencies, Crown corporations, police forces, municipalities, and school boards) are to respond to that law.
Strictly speaking, legislatures can state whatever they want in their laws. Rarely, however, do such legislative statements amount to more than political grandstanding, particularly where the constitution is concerned. Within our constitutional order, only courts can strike down legislation for failing to comply with the constitution.
It’s a general rule of legal interpretation that, if possible, ambiguous statutes should be interpreted so that they comply with the constitution. This means that if an act is capable of being read in one of two ways — one that is constitutional and the other unconstitutional — then courts should adopt the interpretation that preserves the law’s constitutionality.
On this point, the act is ambiguous as to whether directions by cabinet to provincial entities are simply limited to the non-enforcement of federal laws. This narrower interpretation — putting aside the question of its political merits — is more likely to be upheld as constitutional. Each level of government is ultimately responsible for ensuring that its laws are implemented and enforced.
If, however, the legislation is interpreted more broadly as allowing provincial entities to violate federal laws, or to otherwise act outside of their constitutional jurisdiction, then it should be struck down as unconstitutional.
Accordingly, if the act is strictly about non-enforcement, then it should say so explicitly. There is ample precedent for provinces refusing to enforce federal laws, so long as they are acting within their constitutional jurisdiction. As lawyer Jesse Hartery argued last month in Policy Options, such was the case for many years with Canada’s former laws restricting abortion before they were struck down by the Supreme Court.
Granted, the act states that it does not authorize orders that would be contrary to the constitution. And yet it’s insufficiently clear how this is to be read alongside the requirement that provincial entities “must comply” with orders and directives made under the act.
Since the act does not actually permit private individuals to ignore or violate federal laws, however, this may all be a moot point. To the likely chagrin of the authors of the Free Alberta Strategy, the federal government cannot be stopped from enforcing its duly enacted laws in a given province, nor can legislatures usurp the judiciary’s responsibility to interpret and apply the constitution.
These legal considerations are, of course, separate from the issue of whether the act is sound public policy. There’s no question that the legislation pursues a heavy-handed approach to federalism. That said, the federal government has hardly been blameless on this charge. Many provincial grievances about federal impositions are legitimate.
But ill-advised provincial laws are not a solution to federal overreach. Federalism works best when the provinces and federal government respect each other’s jurisdiction. At a minimum, Alberta’s “sovereignty act” must be amended to make clear that the provincial government is committed to not violating federal laws and to doing its part to uphold the constitutional division of powers.
Kristopher Kinsinger is an Ontario lawyer and the national director of the Runnymede Society. The views expressed here are his own.